No. 10-4424-pr
McClary v. Conway
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
7 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
8 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
9 PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1. WHEN CITING A
10 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12 DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
13 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
14 REPRESENTED BY COUNSEL.
15
16 At a stated term of the United States Court of Appeals for the Second Circuit, held at
17 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
18 York, on the 17th day of July, two thousand twelve.
19
20 PRESENT: JON O. NEWMAN,
21 RAYMOND J. LOHIER, JR.,
22 CHRISTOPHER F. DRONEY,
23 Circuit Judges.
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25
26 DAVID McCLARY,
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28 Petitioner-Appellant,
29
30 v. No. 10-4424-pr
31
32 JAMES T. CONWAY,
33
34 Respondent-Appellee.
35
36 ------------------------------------------------------------------
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38 FOR APPELLANT: JEREMY GUTMAN, ESQ., New York, NY.
39
40 FOR APPELLEE: SHULAMIT ROSENBLUM NEMEC, Assistant District
41 Attorney (Leonard Joblove, Victor Barall, Assistant
42 District Attorneys, on the brief) for Charles J. Hynes,
43 District Attorney for Kings County, Brooklyn, NY.
44
45 Appeal from a judgment of the United States District Court for the Eastern District
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1 of New York (Eric N. Vitaliano, Judge).
2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
3 AND DECREED that the judgment of the District Court is AFFIRMED.
4 Petitioner-Appellant David McClary appeals from a judgment entered on October
5 6, 2010, dismissing his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, but
6 issuing a certificate of appealability as to his claim of ineffective assistance of counsel.
7 McClary killed a man with a single punch to the head. McClary was convicted in 2002,
8 after a jury trial in the Supreme Court of New York, of murder in the second degree, for
9 which he was sentenced to a term of imprisonment of twenty-five years to life (later
10 reduced by the Appellate Division, Second Department, to twenty years to life). On
11 appeal, he asserts that the District Court improperly denied his petition, and did so
12 without the benefit of the complete state court record. We assume the parties’ familiarity
13 with the facts and record of the prior proceedings, which we reference only as necessary
14 to explain our decision to affirm.
15 “We review de novo a district court’s denial of a petition for a writ of habeas
16 corpus.” Parker v. Ercole, 666 F.3d 830, 834 (2d Cir. 2012). Where a state court
17 adjudicated a claim on the merits, such a petition may not be granted unless the state
18 court’s decision “was contrary to, or involved an unreasonable application of, clearly
19 established Federal law,” or was “based on an unreasonable determination of the facts in
20 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) -
21 (2). On appeal, McClary contends that his trial counsel’s performance was inadequate
22 because he failed effectively to pursue a motion seeking to suppress McClary’s post-
23 arrest confession pursuant to Dunaway v. New York, 442 U.S. 200, 218-19 (1979), which
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1 requires the exclusion of statements obtained as a result of an unlawful arrest made
2 without probable cause. The state court rejected this argument when McClary raised it on
3 direct appeal.
4 To succeed on a claim of ineffective assistance of counsel, a petitioner must show
5 “that (1) the performance of his counsel was objectively unreasonable and (2) there is a
6 reasonable probability that, but for [the] deficient performance, the result of the
7 proceeding would have been different.” Parker, 666 F.3d at 834; see Strickland v.
8 Washington, 466 U.S. 668, 687-88, 694 (1984). In order to satisfy the prejudice prong of
9 the Strickland test, McClary must show, at a minimum, that he could have prevailed on a
10 properly pursued Dunaway motion. See Kimmelman v. Morrison, 477 U.S. 365, 375
11 (1986); United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990).
12 McClary cannot make this showing. Under New York law, hearsay information
13 provided by an informant can establish probable cause for a warrantless arrest if law
14 enforcement demonstrates both the basis of the informant’s knowledge and the reliability
15 of the informant. People v. Ketcham, 93 N.Y.2d 416, 420 (1999); People v. DiFalco, 80
16 N.Y.2d 693, 696 (1993). Here, the Government satisfied the first prong by submitting an
17 affidavit stating that McClary had been named as the “attacker” by two informants, both
18 of whom were “‘known to’ the People,” and that he had admitted the crime to them. See
19 Ketcham, 93 N.Y.2d at 421. Moreover, the record indicates that at least one of the
20 informants was a citizen informant “from the neighborhood.” The reliability of identified
21 citizen informants is presumed under New York law. Caldarola v. Calabrese, 298 F.3d
22 156, 165 (2d Cir. 2002); People v. Parris, 83 N.Y.2d 342, 350 (1994). Because McClary
23 has not presented any evidence rebutting this presumption, or, more generally, indicating
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1 that he would have prevailed if his counsel had pursued the Dunaway motion, he has not
2 established any prejudice resulting from the allegedly ineffective actions of his trial
3 counsel.
4 We also reject McClary’s contention that the District Court erroneously concluded
5 that his trial counsel’s failure to pursue the Dunaway motion was not objectively
6 unreasonable. “‘[I]t is not sufficient for [a] habeas petitioner to show merely that counsel
7 omitted a nonfrivolous argument, for counsel does not have a duty to advance every
8 nonfrivolous argument that could be made.’” Ramchair v. Conway, 601 F.3d 66, 73 (2d
9 Cir. 2010) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). In addition,
10 we must “‘indulge a strong presumption that counsel’s conduct falls within the wide
11 range of reasonable professional assistance; that is, the defendant must overcome the
12 presumption that, under the circumstances, the challenged action might be considered
13 sound trial strategy.’” Bierenbaum v. Graham, 607 F.3d 36, 51 (2d Cir. 2010) (quoting
14 Strickland, 466 U.S. at 689). Under these circumstances, we agree with the District Court
15 that McClary’s trial counsel, having learned that McClary’s arrest resulted from his
16 admissions to two known informants, may reasonably have reevaluated the likelihood of
17 success of the Dunaway motion and decided, as a matter of trial strategy, not to pursue it.
18 The state court’s decision that McClary was provided with effective assistance of counsel
19 was, therefore, not contrary to, nor an unreasonable application of, established federal
20 law.
21 Finally, the District Court had before it the relevant portions of the state court
22 record from which to make this determination. That included copies of the relevant
23 portions of both Appellant’s and Respondent’s state court appellate briefs, which quoted
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1 extensively from the Dunaway motion papers. The contents of the affidavit submitted in
2 opposition to the Dunaway motion are, in any event, undisputed. In addition, all the
3 relevant identifying information regarding the two informants was provided in the
4 prosecutor’s opening statement at trial, which was also included in the record provided to
5 the District Court.
6 We have considered McClary’s other arguments and conclude that they are
7 without merit. For the foregoing reasons, we AFFIRM the judgment of the District
8 Court.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk of Court
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